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Plemmons v. New Jersey Automobile Full Insurance Underwriting Association

Decided: March 30, 1993.

ROBERT A. PLEMMONS, PLAINTIFF-APPELLANT,
v.
NEW JERSEY AUTOMOBILE FULL INSURANCE UNDERWRITING ASSOCIATION BY AND THROUGH ITS SERVICING CARRIER, SELECTIVE INSURANCE COMPANY OF AMERICA, DEFENDANT-RESPONDENT



On appeal from Superior Court of New Jersey, Law Division, Special Civil Part, Camden County.

Antell, Dreier and Villanueva. The opinion of the court was delivered by Villanueva, J.s.c. (temporarily assigned).

VILLANUEVA

Plaintiff appeals from a summary judgment dismissing his claim for transportation expenses, tuition expenses and essential service benefits, plus interest, asserted as part of an otherwise valid personal injury protection ("PIP") claim. We reverse the denial of transportation expenses and interest, but otherwise affirm.

On September 17, 1988, plaintiff Robert Plemmons was a pedestrian injured when struck by an automobile. Plaintiff was entitled to PIP benefits because his wife was insured by a policy of automobile insurance issued by the New Jersey Automobile Full Insurance Underwriting Association ("NJAFIUA") through its servicing carrier, Selective Insurance Company of America (collectively referred to as "defendant"). As a result

of the accident, plaintiff suffers from a condition known as reflex sympathetic dystrophy ("RSD"). The causal relationship of this injury to the accident was firmly established in earlier Superior Court litigation between the parties. Because of this condition, plaintiff continues to need frequent and expensive medical care.

Plaintiff claims payment of medical bills, with interest in accordance with the no-fault law regarding overdue payments. Plaintiff also seeks reimbursement for transportation expenses incurred traveling to and from the various doctors and hospitals for treatment of the injuries arising from the accident. Finally, plaintiff seeks reimbursement of the costs of "at distance" education as a medical expense, because of his alleged need for vocational retraining, and the psychological benefit that would be gained from his involvement in such vocational re-education.

Defendant moved for summary judgment on the grounds that travel expenses, as demanded by plaintiff, were not recoverable as a matter of law. Plaintiff cross-moved for summary judgment and argued that, pursuant to N.J.S.A. 39:6A-2e and 39:6A-4a, he was entitled to transportation and tuition expenses as well as other unpaid medical and essential services benefits. Additionally, plaintiff argued that he was entitled to statutory interest on all compensable claims not paid within the prescribed time limit as set forth in N.J.S.A. 39:6A-5b. In support of his cross-motion, plaintiff submitted his affidavit containing detailed medical, travel, tuition and essential services expenses.

In response to plaintiff's cross-motion for summary judgment, defendant again argued that plaintiff's transportation and tuition expenses are not compensable. Defendant also argued that all compensable claims filed by the plaintiff had been paid within the time prescribed by N.J.S.A. 39:6A-5b.

The court granted defendant's motion for summary judgment to dismiss the complaint. After noting that plaintiff's demand of $7,627.35*fn1 exceeded the Special Civil Part's jurisdictional

limitation of $5,000, the court denied plaintiff's cross-motion. Commenting on the particulars of plaintiff's motion, the court declared:

The Court is compelled to accept the competent proof offered by defendant over this vague uncertified assertion offered by the plaintiff regarding payment of medical and essential expenses.

And the only indication offered by plaintiff to counter defendant's proofs is the statement, unsupported statement, subsequent to each expense calculation, stating "Plaintiff has been unable to determine which if any of these bills has been reimbursed."*fn2

Finally, plaintiff claims tuition expenses based on a letter from a psychiatrist, John Rushton, which states that the plaintiff "cannot pursue his previous occupation which required data input efforts that necessitated the use of both hands. I recommend he attend school to specialize in criminal Justice, perhaps fraud investigation in the insurance industry, so that he could practice and/or teach same." . . .

However, a letter from David Toomey indicates that plaintiff only worked approximately 5 percent of his time on a computer. Plaintiff's education and training prior to the injury indicate that he does not need to be totally reeducated. In any event, in order for plaintiff to be reimbursed, the expense must be determined to be medical in nature, and the nexus between the expense and the desired rehabilitative endeavor must be direct.

Plaintiff now appeals.

I.

Plaintiff argues that the trial court improperly concluded that, as a matter of law, transportation expenses incurred in traveling to and from prescribed medical treatment are not recoverable pursuant to N.J.S.A. 39:6A-2e and 39:6A-4a. In support of his argument, plaintiff relies upon Stewart by Stewart v. Allstate Ins. Co., 103 N.J. 139, 510 A.2d 1131 (1986); Paul v. Ohio Cas. Ins. ...


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